Submitted: October 21, 2016
from United States District Court for the District of
Minnesota - St. Paul
RILEY, Chief Judge, WOLLMAN and BENTON, Circuit Judges.
WOLLMAN, Circuit Judge.
a jury trial, Darrell Alan Lussier was convicted of three
counts of kidnapping, in violation of 18 U.S.C. §§
1151, 1153(a), and 1201(a)(2), and three counts of assault
resulting in serious bodily injury, in violation of 18 U.S.C.
§§ 113(a)(6), 1151, and 1153(a). The district
court sentenced Lussier to 360 months'
imprisonment. Lussier appeals, arguing that the district
court erroneously instructed the jury regarding assault
resulting in serious bodily injury, that the court erred by
conditionally admitting a prior assault conviction as
impeachment evidence, and that the evidence was insufficient
to convict him of kidnapping. We affirm.
Lussier challenges the sufficiency of the evidence, "we
will examine the evidence in the light most favorable to the
government, giving the government the benefit of all
reasonable inferences." United States v.
Bordeaux, 84 F.3d 1544, 1547 (8th Cir. 1996). In
February 2015, Gregory Lee Maxwell resided in a duplex house
in the Back of Town area of the Red Lake Indian Reservation.
Maxwell was prohibited from having drugs in the house.
Lussier and his then-girlfriend Cristy Sumner resided with
Maxwell for approximately one month. Maxwell believed that he
was on good terms with Lussier and Sumner, who had
"pretty much left on their own, " but according to
Maxwell, Lussier and Sumner had brought drugs into the house,
despite knowing that drugs were not allowed on the premises.
about February 7, 2015, David Roy and Maxwell were drinking
alcohol together at Maxwell's house. When Maxwell left to
buy more alcohol, he instructed Roy not to let Lussier and
Sumner into the house. When Maxwell returned home a few hours
later, David Roy, his sister Nancy Roy, Lussier, and Sumner
were present at his house. Lussier proceeded to beat Maxwell,
David Roy, and Nancy Roy. According to Maxwell, Lussier hit
him, jumped on his stomach and side, wrapped a bootlace
around his throat, and dragged him by the bootlace, choking
tried to leave, Sumner blocked the door, and Lussier told
him: "Tonight is the night. Tonight is the night. You
gonna die tonight. You got one hour to live." David Roy
and Nancy Roy were also badly beaten by Lussier. Lussier and
Sumner threw Maxwell, David Roy, and Nancy Roy through a trap
door into the crawl space underneath the house. They then
shut the trap door to the crawl space, which was cold and
poorly lit. Maxwell and Nancy Roy attempted to find the trap
door and push it open but were unable to do so. The three
remained in the crawl space until Maxwell's nephew,
Lawrence Kingbird, discovered them on the morning of February
David Roy, and Nancy Roy all eventually received medical
treatment. Maxwell suffered a hemopneumothorax, blood and air
in the chest cavity that placed pressure on the heart and
lungs and required the placement of a chest tube; several rib
fractures, which likely caused the hemopneumothorax; spinous
process fractures; a dissection of his carotid artery, which
caused him to suffer a stroke; a deep cut on his chin that
required sutures; and a traumatic brain injury. Maxwell was
hospitalized for approximately ten days and spent ten more
days in rehabilitation. Nancy Roy suffered a subdural
hematoma and multiple facial bone fractures, which required
surgery. She was hospitalized for approximately ten days.
David Roy suffered hemorrhaging in his brain and facial
fractures. He spent more than one month in the hospital and
approximately one month in a psychiatric facility.
first argues that the district court erred in instructing the
jury on assault resulting in serious bodily injury. Because
Lussier did not object to these instructions, we review for
plain error. United States v. Davis, 237 F.3d 942,
944 (8th Cir. 2001). "[A] conviction will be affirmed
'if the instructions, taken as a whole, fairly and
adequately convey the law applicable to the case.'"
United States v. Whitefeather, 275 F.3d 741, 743
(8th Cir. 2002) (quoting United States v. McDougal,
137 F.3d 547, 558 (8th Cir. 1998)).
contends that the jury instruction did not require the jury
to find that Lussier committed an assault that resulted in
serious bodily injury, as the statute requires. See
18 U.S.C. § 113(a)(6). The district court instructed the
jury that the offense has two elements: that the defendant
committed an assault, and that the person assaulted suffered
serious bodily injury. The court defined assault as "an
intentional and voluntary attempt or threat to do injury to
another person, when coupled with the present ability to do
so that is sufficient to put the other person in fear of
immediate bodily injury." Lussier argues that because
the instruction defined assault only as a threat or attempt
to injure another, it did not require that the assault
actually caused the serious bodily injury. He acknowledges
that we have previously upheld convictions for assault under
§ 113 when the offense conduct involved a harmful or
offensive touching. See Whitefeather, 275 F.3d at
742-43; Davis, 237 F.3d at 944-45. But he argues